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Update: The Torture Debate

The news that the new version of the Army Field Manual will include a secret 10-page list of interrogation methods (including examples of what methods are acceptable under what circumstances) isn't going over well among supporters of the McCain Amendment. Some are understandably concerned that this is an attempt to undermine the amendment, which would require interrogations of prisoners held abroad to be subject to the same rules as interrogations conducted on U.S. soil.

Opponents argue that McCain himself undermines the amendment by his acknowledgment that there are circumstances in which using prohibited techniques on prisoners might be necessary. (More on that below.)

What's really at issue here is definitions. Clarity is severely lacking in rules on interrogation. In an online discussion today, former JAG Victor Hansen wrote, "I think there is a dangerous perception problem if more than one set of rules are even in existence. In spite of the best efforts by the senior leadership at Abu Ghraib, confusion and contradiction still existed."

McCain's amendment, which President Bush today agreed to support, would solve this problem insofar as it would make the Army Field Manual the official rulebook for interrogations. But even if there's only one set of rules, that's not terribly helpful if those rules aren't crystal clear.

The amendment does not clarify what constitutes cruel or inhuman or degrading treatment, or what precisely crosses the line into torture, although part of the compromise with the president is that specific procedures for interrogations will be added to the Field Manual. Does the 10-page addendum offer more clarity? It sounds like it does. According to the New York Times:

The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations.

Trouble is, we have no way of knowing where those lines are being drawn, and it is unacceptable for the people of the United States to be kept in the dark about any abuses that may be permitted in our name.

Besides, the newly revised Army Field Manual, due to come out any day, will offer more specific guidelines on interrogations, the Times reports.

The new manual, the first revision in 13 years, will specifically prohibit practices like stripping prisoners, keeping them in stressful positions for a long time, imposing dietary restrictions, employing police dogs to intimidate prisoners and using sleep deprivation as a tool to get them to talk, Army officials said. In that regard, it imposes new restrictions on what interrogators are allowed to do.

The question then becomes, is the Field Manual too restrictive, as Vice President Cheney insists? Even McCain himself has said that when a president faces the most extreme of circumstances -- the "ticking bomb scenario," if you will -- "You do what you have to do." But, he added, "you take responsibility for it."

Does this admission make McCain's amendment a bit hypocritical, given that he expects the law will be broken under certain circumstances? Is it better to have a law and just quietly assume that under extraordinary circumstances it would be broken by the executive/CIA? Or is it better to have a built-in exception (Cheney tried to exempt the CIA from the rules), but run the risk of further damage to the image of morality that the U.S. wants to project?

An excellent National Review editorial has an answer that would create a mechanism for the president to "do what [he has] to do" while also ensuring that he takes responsibility for it, as McCain says must happen. The NRO editorial proposes that presidential authorization be required to use harsher techniques that border on torture, like waterboarding. The power would be there for extraordinary circumstances, while also ensuring that the president can be held accountable for the decision.

The editorial also addresses the problem of definitions, arguing that instead of offering vague platitudes, Congress needs to delve into each specific method and decide which ones can be legally used on detainees not considered prisoners of war and which ones should be prohibited.

Coming up with clear, unambiguous guidelines is easier said than done, of course, as it seems that no one -- including the Attorney General of the United States -- is able (or willing) to define precisely what constitutes torture. (For Gonzales's non-answer to the simple request that he "please define 'torture'," go here and scroll about halfway down.)

Still, it seems to me that the National Review is on to something here. Having the ambiguities cleared up by Congress would be an open process, and it forces our representatives to confront this issue head on, piece by piece. (That's what an interrogator would have to do, except he'd have to do it on the spur of the moment, while Congress has the luxury of extended debate.) Why is Congress there, if not to deliberate and come to conclusions on the toughest decisions facing the country?

Comments

Ugh, one country's torture victim is another country's freedom fighter/hero. It's such a difficult grey area in the first place and the cretins currently in charge of U.S. defense, security and international relations are not helping at all to clarify a morally acceptable stance.

Posted by: Tina A. | December 15, 2005 03:27 PM

Let`s make our secret interrogation methods a matter of public record. Eager islamo-terrorists need to know the potential consequences of capture prior to murdering people so they can make an informed decision.
" Should I saw this man`s head off? If I`m apprehended, the Americans might put underwear on my head to gain valuable intel. If I`m caught organizing and financing jihadic suicide bombings while establishing the worldwide caliphate, I could be deprived of sleep and aggressively debriefed by a...omg...woman."

Posted by: bender | December 15, 2005 11:18 PM

Tina A is right. This is a horrible grey area: if you know without any doubt that a certain terrorist has explicit information regarding a coming terror attack and that once you have that information you can save thousands of lives, I think most people would agree that nearly any means to get that information are acceptable...and, likewise, if a person might (or might not) be a bad guy and might (or might not) know something that might happen in the future, most people would probably agree that there are obvious limits on how harshly the questioning/interrogation can be conducted...the "grey" area is the entire region between these two scenarios.

Senator McCain's ammendment only pretends to address this grey-ness by using long words that mean "don't go too far...and we'll judge with 20/20 hind-sight"

In the end this is a question about morality: Does the United States of America believe that there are some things that are so reprehensible that, regardless of the cost of not doing them, we choose not to? Or do we belive that in all cases the ends justify the means.

It is my observation that the current administration believes the ends justify the means. I'd like to believe that most Americans believe that there are some things we shouldn't do...period.

We need a law that clearly and unambiguously defines categories of actions that are unacceptable and provides for sharp and clear punishment for violations.

Until the people who are actually at the point of the spear, dealing with the really tough questions every day, understand and accept the limits American-flavored civilization chooses to place on them, disgraces like Abu Ghraib will happen...and that will feed the resentment that terrorist recruiters depend on.

...

Posted by: Bob (in Denver) | December 16, 2005 01:53 AM

Tina A is right. This is a horrible grey area: if you know without any doubt that a certain terrorist has explicit information regarding a coming terror attack and that once you have that information you can save thousands of lives, I think most people would agree that nearly any means to get that information are acceptable...and, likewise, if a person might (or might not) be a bad guy and might (or might not) know something that might happen in the future, most people would probably agree that there are obvious limits on how harshly the questioning/interrogation can be conducted...the "grey" area is the entire region between these two scenarios.

Senator McCain's ammendment only pretends to address this grey-ness by using long words that mean "don't go too far...and we'll judge with 20/20 hind-sight"

In the end this is a question about morality: Does the United States of America believe that there are some things that are so reprehensible that, regardless of the cost of not doing them, we choose not to? Or do we believe that in all cases the ends justify the means?

It is my observation that the current administration believes the ends justify the means. I'd like to believe that most Americans believe that there are some things we shouldn't do...period.

We need a law that clearly and unambiguously defines categories of actions that are unacceptable and provides for sharp and clear punishment for violations.

Until the people who are actually at the point of the spear, dealing with the really tough questions every day, understand and accept the limits American-flavored civilization chooses to place on them, disgraces like Abu Ghraib will happen...and that will feed the resentment that terrorist recruiters depend on.

...

Posted by: Bob (in Denver) | December 16, 2005 01:55 AM

Tina A is right. This is a horrible grey area: if you know without any doubt that a certain terrorist has explicit information regarding a coming terror attack and that once you have that information you can save thousands of lives, I think most people would agree that nearly any means to get that information are acceptable...and, likewise, if a person might (or might not) be a bad guy and might (or might not) know something that might happen in the future, most people would probably agree that there are obvious limits on how harshly the questioning/interrogation can be conducted...the "grey" area is the entire region between these two scenarios.

Senator McCain's ammendment only pretends to address this grey-ness by using long words that mean "don't go too far...and we'll judge with 20/20 hind-sight"

In the end this is a question about morality: Does the United States of America believe that there are some things that are so reprehensible that, regardless of the cost of not doing them, we choose not to? Or do we belive that in all cases the ends justify the means.

It is my observation that the current administration believes the ends justify the means. I'd like to believe that most Americans believe that there are some things we shouldn't do...period.

We need a law that clearly and unambiguously defines categories of actions that are unacceptable and provides for sharp and clear punishment for violations.

Until the people who are actually at the point of the spear, dealing with the really tough questions every day, understand and accept the limits American-flavored civilization chooses to place on them, disgraces like Abu Ghraib will happen...and that will feed the resentment that terrorist recruiters depend on.

...

Posted by: Bob (in Denver) | December 16, 2005 01:56 AM

Bob,
The case where one "knows" a prisoner has information which will save one or many lives occurs almost exclusively in debate, hardly ever in real life. The reality is if you permit torture, innocent people will sometimes be tortured, just as innocent people are sometimes charged and tried in court, and sometimes even convicted.

Thank goodness John McCain stuck by his principles on this matter. The moral price of torture is simply not worth the its uncertain benefit.

Posted by: Cayambe | December 17, 2005 12:25 AM

Emily, I beg to differ. I do not believe that the NR editorial is at all excellent or that it is on to anything that is morally acceptable or legally coherent with the CID.

But first, lets take the ex-JAG Hansen's comment, "despite the best efforts by the senior leadership at Abu Ghraib". Please, if "best efforts" of senior officers includes leaving enlisted personnel to run around unsupervised by an officer and do whatever they felt like on the night shift, then our best is hardly good enough, is it? And if an officer was supervising them, why didn't he go to jail also? Best efforts my bu**.

Second, McCain's amendment is an essential step forward, not a panacea, and should be assessed on the basis of whether or not it is an essential step forward. The administration's position to date is, as a matter law we don't do torture and as a matter of policy we don't do cruel, inhumane, or degrading treatment; and we will not tell you what we do or codify it. I.e., trust us. McCain's first step is to get it codified; because, as Reagan once said, "Trust, but verify". There are some different things to debate here. Is the Army Field Manual the best place to codify it or should it be done somewhere else; if so where? Separately, should it or should it not be codified at all?

The first issue I take with NR is its assumption, its assertion that the definition of cruel, inhumane, or degrading treatment changes with context; and by implication, torture also. This makes it practically impossible then to codify anything in a meaningful way given the number of possible contexts.

No, I think not. What we must establish is which interrogation techniques are not torture and not cruel, inhumane, and degrading treatment, and we must then limit ourselves to the use and application of these and no others. If you then wish to limit some of these to the CIA, or to the Secret Service, or to the President, or however many tiers you wish, I have no quarrel. It is also perfectly OK to consider context in choosing from the available set of techniques.

So how might we go about defining just exactly what would be torture or cruel, inhumane, and degrading treatment?

I don't think this is nearly as difficult as we seem to make it. First, let us recognize that the interrogator hardly ever KNOWS that the interrogatee actually has the information he seeks; what he thinks is that he MAY have useful information. In other words there is a substantial chance that either the interrogatee doesn't know anything, or if he does, he will successfully resist the technique used to extract it. Further, the interrogator will not know which of those two latter possibilities is true, and, if there is no yield, he will naturally escalate to the next available technique. This is the nature of the interrogation process. On the individual who just happens to know nothing of value, it will proceed until it reaches the last and most coercive of the available technique.

Since we know in advance that it is inevitable that some absolutely innocent slob is sometime going to get trapped into this process, all you really have to do to assess what is cruel, inhumane, or degrading, is to put yourself in the shoes of either the interrogator, the interrogatee, or both. For each proposed technique, would you be willing to use this technique on an innocent individual and would you be willing to endure this technique as an innocent individual. Waterboarding? Its easy. If the people who wish to qualify that technique are also willing to endure it, I would say they have a case for it. CID is after all, a bit like obscenity. To paraphrase, you will know it when you experience it. As I say, it should not be at all difficult for any selected group to decide what techniques are not CID; so long as they are willing to use experience as their guide.

The problem in this matter is the degree to which people wish to keep it to abstractions; wish to consider the morality of it in the abstract, in the hypothetical. One thing we must grant the good Senator McCain (with whom I profoundly disagree on the Iraq invasion itself by the way) is that to him, unlike most of his critics, this subject is no abstraction; in this matter he comes armed with intimate personal experience.

Posted by: Cayambe | December 17, 2005 08:22 PM

From Emily: "Does the 10-page addendum offer more clarity? It sounds like it does. According to the New York Times:

The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations."

And every bad guy out there that is competent - now has a copy of that addendum and is briefing their people on how far the US can go so they can avoid spilling their info to the Americans in interrogations.

I think it will be amusing for analysts to look at this years from now and try to establish how many American lives McCain, civil liberties extremists, and the Left cost us.

Posted by: Chris Ford | December 18, 2005 02:33 AM

McCain's torture ban amendment succeeds the same week (perhaps day) that the Patriot Act fails to be extended. 2005 was a transitional year in that a once very dominant presidency is no longer so high and mighty, probably because the Hurricane Katrina incident seems to have woke this country up from it's post-9/11 mentality. Perhaps we are now in a post post-9/11 era wherein the reaction to 9/11 is being re-examined and slowly reversed, especially in regards to the president. I personally feel that George W Bush has caused more problems than he has solved in the last few years since 9/11, and I truly hope 2006 will be another year in which Bush's excess of power continues to dwindle to negligible levels.

Posted by: ErrinF | December 18, 2005 02:42 AM

I think it will be amusing for analysts to look at this years from now and try to establish how many American lives McCain, civil liberties extremists, and the Left cost us.
Posted by: Chris Ford.

I sincerely doubt the count will be as high as the amount of Americans that have already died under Bush's watch. 9/11 + the Iraq War = over 5,000 Americans dead already. Being that Bush will be president for 3 more years, and Osama Bin Laden is still running around freely, that count may easily go up.
If you're going to hold McCain and 'The Left' accountable for imagined deaths that haven't even occurred yet (and you offer no proof that banning torture definitely leads to more Americans being killed), try to first hold somebody accountable for the actual deaths which have occurred in recent years. McCain and The Left were not in charge of national security when 9/11 happenned; Bush was and his administration dropped the ball in preventing the 9/11 attack. McCain and The Left did not hoist the Iraq War upon this nation; Bush did, and the number of dead American soldiers is 2100+ and counting for a war that has no guarantees of reducing terrorist activity.
What will be 'amusing' (I for one do not find anything amusing about dead Americans) is when analysts look back at this presidency to realize George Bush caused more problems than solutions during his term in office.

Posted by: ErrinF | December 18, 2005 03:55 PM

The Left has no power in America but has caused the most damage. Nice propaganda, but another fanatasy. All the Left can offer is criticism, and without another group offering criticism, all America has is a nice little fascist regime blaming all the mistakes on those who have no power.
Who wouldn't vote for the Left that has accomplished so much, and taken so much blame in the Bush scheme of things. Can you imagine what they would do in power.
You can't have it both ways, those in power are responsible. Those not in power have the responsibility to speak up.
America is a shell of what it once was, with the evil intact.
What is this two party system? Two choices for such a huge country, no wonder America is ripe with corruption?
With the Canadian election underway I feel much safer with the choice of; the Liberal Party, the Conservatives, the NDP, the Bloc Quebecois, and the Green Party. The more choices, the more empowered people feel. More pressure and demand o n politicians. Less likelihood of corruption and more parties to catch it. With two parties they can have their buddy deals, knowing they take their turns at the trough.Only each other to catch it. A fantasy situation for the corrupt.

Posted by: SpeakoutforDemocracy | December 19, 2005 09:03 AM

Canada? You mean the 51st state?

Posted by: | December 19, 2005 10:17 AM

ErrinF,
Alas, The good Senator McCain was one of the strongest voices in favor of the invasion of Iraq. He is not always right. I'm the only one with a just claim to that :o)

SpeakoutforDemocracy,
Multiple parties is no guarantee against corruption. It was exactly that which brought the current Canadian government down. And Brazil has recently shown how easily the smaller parties can be bought by the governing party.

Posted by: Cayambe | December 19, 2005 02:06 PM

Mr Bush's administration has demonstrated both good and bad over the years. However, it seems evident to me that the man himself is lacking. I admit to voting for him in 2000. I voted for someone who was concerned with domestic issues and wanted as few foreign entanglements as possible. I voted for someone with fresh, objective ideas in education, entitlements, justice, and fiscal responsibility. Were I a better judge of character, I would have voted for Gore.

I got a man bent on resolving family and friendly (Saudi) problems with Saddam Hussein. I got a man who has entered into two of the largest attempts at nation building since 1945; one in defense of the nation and one in distraction of the nation. I got a man who cares so little for the rule of law that he brags about circumventing it. I got a man who belives in bankrupt accountability; the practice of holding people to rules they can't afford and he won't fund properly. I got a man who at every turn has made it his business to push his personal religious beliefs in my face and force me to pay for them through my taxes. Finally, and probably the worst from my point of view, I got a man who beleves he can spend every dollar at least three times over before he no longer has access to it.

John McCain is doing what Senators are supposed to do. He is passing law based on what he believes is the good of the country. He may be wrong and he may be right. Either way, he is working for us. Mr Bush works for himself and, maybe, a few others with whom he agrees. In short, he sucks and I cannot wait for Jan 2009 when we will finally be free of him. Would that breaking the law to kill people was at least as bad at getting a little action on the side in the White House and we could be rid of him now.

Posted by: Don | December 19, 2005 03:48 PM

"McCain and The Left were not in charge of national security when 9/11 happenned; Bush was and his administration dropped the ball in preventing the 9/11 attack."
- ErrinF

So I guess Osama planned and executed the 9/11 attacks during the 8 months Bush was in office. Try looking back a little further sweety to the "glorious" Clinton years where budgeting for defense and intelligence was cut dramatically, and "little" Osama was viewed by Clinton as "not a threat."

Posted by: Alex Ham - America's Hero | December 19, 2005 04:28 PM

Alex, if you keep sleeping through history class you'll never get out of high school.
Osama was viewed as a threat by the Clinton administration, who 1) tried to have Osama taken out with a rocket during a wedding in the desert, 2) took out several training camps from the air, 3) prepared intelligence memos to pass to Bush showing the threat of Osama.

Bush was too busy playing with his toy soliders and lining up the sights on Iraq to pay attention.

Posted by: Duh | December 19, 2005 04:34 PM

As we have repeatedly been told, the Bush Administration has never supported a doctrine of torture. The present argument arises in what we choose to define as torture. Americans (myself included) tend to applaud rougher methods of treatment to prisoners (especially those outside of Geneva protection) within certain limits. Sleep deprivation, hoods, and verbal threats are methods that do not fit my definition of torture. An ACLU lawyer would probably disagree with me.

Posted by: Jon M | December 19, 2005 07:47 PM

As we have repeatedly been told, the Bush Administration has never supported a doctrine of torture. The present argument arises in what we choose to define as torture. Americans (myself included) tend to applaud rougher methods of treatment to prisoners (especially those outside of Geneva protection) within certain limits. Sleep deprivation, hoods, and verbal threats are interogation methods that do not fit my definition of torture. An ACLU lawyer would probably disagree with me.
Water-boarding is a technique many of the more squeamish would define immediately as torture. Yet we use the practice to train our own CIA agents. I think the torture debate is a conversation that we need to have. Yet the rhetoric needs to be cooled. The Administration has used interogation methods within the legal definition of our understanding of torture. If we wish to redefine that defination...well fair enough. But lets cease the intellectually dishonest rhetoric that portrays the President and CIA official as subhuman, sadistical Eichmans. Unlike the terrorists they at least possess the worthy motive of SAVING lives.

Posted by: Jon M | December 19, 2005 07:58 PM

Duh - I'm referring to the incident where Osama was actually in custody and released because according to Clinton he was of no interest to the United States. I'm too old to have learned anything from the 90's in history class.

Posted by: Alex Ham - America's Hero | December 20, 2005 07:33 AM

Cayambe, Multiple parties in an election mean that you have more overseers for the checks and balances of making sure you do not mix corruption in the overseeing of a democracy. The buddy deals and silent handshakes are less likely to work when you have more parties watching and listening to what is going on.A minority government works best because everyone wants to make the people happy, so the next election maybe they will be a majority
government.
We recently discovered that our Liberal Party had stolen money from the people, through the Sponsorship scandal. There was an inquiry, blame was placed, and there was a vote of no confidence in the ruling Liberals. We are in the midst of an election.To me this shows that the democracy works. We caught it, we examined it, and we are showing our distaste for the behaviour of corruption.

Posted by: SpeakoutforDemocracy | December 20, 2005 08:22 AM

Whatever, Alex Ham... blaming Clinton is a dodge. 9/11 occurred nearly nine months after Bush was president, and occurred under Bush's watch. Pointing the finger at Clinton does not change those facts at all.

Posted by: ErrinF | December 22, 2005 09:20 PM

I couldn't agree more with SpeakoutforDemocracy's points on the American two party system being ripe with corruption. If our government has three branches to balance power properly, why don't we have three parties to do the same? Oh wait, that would mean following logic instead of tradition... not a strong point of the American electorate.

Posted by: ErrinF | December 22, 2005 09:29 PM

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